Citation Nr: 1335406 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 12-10 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a rating in excess of 10 percent disabling for status post-operative injury to the right ankle with traumatic arthritis (also claimed as right ankle fracture). ATTORNEY FOR THE BOARD Bonnie Yoon, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1988 to August 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee which continued the 10 percent disability rating. Because the Veteran resides in Mississippi, jurisdiction rests with the RO in Jackson, Mississippi, from which the Veteran's appeal was certified. A claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU) where there are allegations of worsening disability and related unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). However in this case, the evidence indicates that the Veteran is currently employed. Accordingly, the question of entitlement to TDIU has not been inferred. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure consideration of the totality of the evidence. FINDING OF FACT The Veteran's status post-operative injury to the right ankle with traumatic arthritis is reflective of moderate limitation of motion manifested by pain with dorsiflexion at worst, to 20 degrees and plantar flexion at worst, to 35 degrees; but no ankylosis, no malunion of the os calcis or astragalus, or no astragalectomy. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for status post-operative injury to the right ankle with traumatic arthritis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5271 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. A June 2009 letter, which was provided to the Veteran prior to the initial adjudication of his claim in August 2009, satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of the evidence that is necessary, or would be of assistance, in substantiating their claims, as well as regulations pertinent to the establishment of an effective date and of the disability rating . Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has fulfilled its duty to assist the Veteran. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records and VA medical treatment records have been obtained; he did not identify any private treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. As such, the Board is not on notice that relevant, outstanding Social Security disability records exist in this case, and the duty to assist does not require the Board to obtain Social Security records prior to adjudication of the claims at issue. See Golz v. Shinseki, 590 F.3d 1370 (Fed. Cir. 2009). VA examinations were conducted in June 2009 and July 2013. While the June 2009 examination results did not clearly state whether repetitive motion testing was done, and the Veteran has stated in his notice of disagreement (NOD) that he disagrees with the results of the June 2009 examination, the July 2013 examiner made all required clinical findings and discussed the functional impact of the ankle disability on the Veteran's daily life. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Therefore, the July 2013 examination is fully adequate for adjudication purposes. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). II. Legal Criteria In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings contained in the Rating Schedule represent the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155(West 2002); 38 C.F.R. § 4.1 (2013). In evaluating any disability on the basis of limitation of motion, VA must also consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's right ankle disability currently is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5271. Hyphenated diagnostic codes are used when a rating for a particular disability under one diagnostic code is based upon rating of the residuals of that disability under another diagnostic code. 38 C.F.R. § 4.27 (2013). The first four numbers, 5010 in this case, reflects the diagnosed disability. The second four numbers after the hyphen, 5271 in this case, identifies the criteria used to evaluate that disability. The criteria for Diagnostic Code 5010 provides for a compensable rating where there is limitation of motion of a joint but it is not compensable under the joint specific diagnostic code. However in this case, Diagnostic Code 5010 is not applied because limitation of motion of the right ankle is evaluated under Diagnostic Code 5271. The Board notes that there are five diagnostic codes pertinent to the ankle. Diagnostic Code 5270 (ankylosis of the ankle), Diagnostic Code 5272 (ankylosis of the subastragular or tarsal joint), Diagnostic Code 5273 (malunion of the os calcis or astragalus), and Diagnostic Code 5274 (astragalectomy) are inapplicable herein, as the medical evidence does not show any ankylosis or malunion of the ankle bones; nor was there any surgical removal of the ankle bone. Only Diagnostic Code 5271, under which the Veteran is currently rated, applies in this instance. Diagnostic Code 5271 provides assignment of a 10 percent rating for moderate limited motion of the ankle, and a 20 percent rating for marked limited motion. 38 C.F.R. § 4.71a (2013). This specific Diagnostic Code does not provide for a rating in excess of 20 percent. The words "moderate" and "marked," as used in the various Diagnostic Codes, are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6 (2013). Normal ankle motion is dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a, Plate II (2013). III. Analysis VA treatment records dated from April 2008 to June 2009, are negative for any treatment for his ankle condition. However, an October 2008 record indicates that the Veteran stated he did not fall since his last appointment. He also stated that he walks frequently and makes major and frequent changes in position without assistance. The Veteran's employer submitted a letter dated June 2009 in which they stated that the Veteran has been an employee since March 1999. Shortly after he began employment he complained about his ankle bothering him when he was standing on it for a long period of time. He was transferred to the sales department, however since that position also entailed walking and being on his feet a lot, he was then moved to the inventory department. Due to business growth, his department merged with other departments and the Veteran's position put him back on his feet for at least five hours a day. According to his employer, the Veteran "still has bad days with his injury." At a VA examination in June 2009, the Veteran complained of pain in the right ankle with early morning stiffness. The pain was described as sharp and intense, and resolves after ambulating for a few minutes. It was followed by a dull intermittent ache which caused him discomfort throughout the day with ambulation. With regard to flare-ups, the Veteran stated that he misses 5 to 6 days of work a year due to intense pain and some swelling, usually lasting 10 minutes and resolved by Bengay and massage. The Veteran also stated that there was minimal intermittent swelling but without heat or erythema. The examiner noted no deformity or instability but mild weakness. The examiner also noted that functional limitation was minimal. Dorsiflexion was 0 to 20 degrees, plantar flexion 0 to 37 degrees. There was normal inversion and eversion strength to gravity and resistance. There was no painful motion, tenderness, spasms, edema, fatigability, lack of endurance, weakness or instability other than what was previously noted. Also there was no loss of function with use except what was noted. X-rays showed no acute fracture, dislocation, or bony destructive lesion. There was a lucency in the subchrondral talar dome medially, suggesting osteochrondritis dissecans, without attachment. The Veteran was diagnosed with traumatic arthritis of the right ankle with osteochrondritis dissecans. Although the June 2009 VA examiner appears to have addressed the DeLuca factors as stated above, he does not clearly report that the required repetitive motion testing was conducted during the examination. Along with his notice of disagreement dated June 2010, the Veteran also submitted statements in which he stated he was contesting several points mentioned in the June 2009 VA examination. The Veteran contended that he did get redness and swelling in his ankle when it got hot outside, and in some instances he "is immobilized until the swelling subsides." He also stated that his ankle gives away during heavy activity at unpredictable times leading to instability for hours and and sometimes days after. The Veteran claimed that he cannot rotate his ankle in normal range without assistance, and that while at work he usually deals with the pain to retain job security. The Board acknowledges that the Veteran is competent to report things he experiences or observes through his five senses. Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, the Veteran clarifies the degree of limitation of motion of his right ankle, to include description of the actual functional impairment based on the DeLuca factors; and therefore addressing the deficiency noted above in the June 2009 examination. At a VA examination in July 2013, the Veteran stated that he fractured his right ankle at air assault school in 1989. He reported having chronic pain since the injury; achy, dull throbbing pain that flares up for about a half hour, occurring once a week. The Veteran stated that he could not stand or walk during flare-ups. He reported stiffness and weakness, and daily swelling. The Veteran denied hospitalization, frequent ER visits or a doctor's prescription for bed rest within the last year. He also stated he was employed. On examination, plantar flexion was 35 degrees, with pain at 25 degrees. Dorsiflexion was 20 degrees with pain at 15 degrees. Range of motion after repetitive use testing showed plantar flexion of 35 degrees and dorsiflexion of 20 degrees. He had no additional limitation in range of motion after repetitive use testing, but had functional loss with less movement than normal and pain on movement. He had full muscle strength and no joint instability. There was localized tenderness or pain on palpation. There was no evidence of ankylosis. The examiner did note that an opinion regarding if and to what extent further repetitive use or flare-ups could significantly limit functional ability could not be determined with literature support, but with clinical information including history and physical findings. He then determined that more definitive loss of function due to flare-ups could not be determined without resorting to mere speculation. X-rays showed findings of degenerative or traumatic arthritis in the right ankle. The examiner also noted that the Veteran's ankle condition impacted his ability to work due to the fact that he could not work in a position with prolonged standing or walking; but is able to do sedentary work, and has mild functional limitations. A review of the electronic records in the Virtual VA system show VA treatment records dated April 2013, which note the Veteran with complaints of ankle pain. A physical examination showed no evidence of deformity and good range of motion bilaterally. The Board finds that an evaluation in excess of 10 percent is not warranted because the Veteran's overall disability picture is more reflective of moderate limitation of motion of the right ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Throughout the period on appeal the Veteran has had at worst 20 degrees of dorsiflexion and 35 degrees of plantar flexion of the right ankle, which is greater than 50 percent of a normal range of motion in the ankle. Also, during the July 2013 VA examination, no additional limitation of motion was found after repetitive motion testing. As such, the Board believes that the overall picture presented is one of moderate limitation of motion. Even considering the actual functional impairment of the right ankle due to the Deluca factors, the Veteran's disability does not rise to the level of marked impairment because, while the Veteran credibly reports that he suffers from flare-ups which cause functional impairment, the flare-ups are intermittent and infrequent, occurring once a week and resolving after a half hour. In his June 2010 statement he indicates that, in some instances, he becomes immobilized until swelling subsides; and that his ankle also gives way during heavy activity at unpredictable times leading to instability for hours and sometimes days after. The Veteran does describe his actual level of severity at that time, but according to the Veteran they occur intermittently and periodically, and are not shown to be sustained or frequent enough to such a degree to result in a marked impairment. Also, the Veteran continues to work at a job that keeps him on his feet for at least five hours a day, albeit having some bad days, according to his employer. The Board has also considered whether a separate evaluation is warranted for the Veteran's right ankle surgical scar noted on the July 2013 VA examination. However, a separate rating for the Veteran's surgical scar is not warranted, as there is no evidence that the Veteran's scar was deep, caused limited motion, was 144 square inches (929 square cm.) or greater, or was unstable or painful on examination. 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7804, 7805 (2013). In sum, the Board finds that the overall disability picture does not reflect that the Veteran is entitled to a rating in excess of 10 percent for his for status post-operative injury to the right ankle with traumatic arthritis. With respect to assigning staged ratings, however, at no time during the period in question has the right ankle warranted a higher schedular rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's symptoms throughout the appeal period have remained relatively consistent and reflective of moderate limitation of motion. Consideration has been given to the possibility of assignment of an extraschedular evaluation under 38 C.F.R. § 3.321. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a Veteran's disability level and symptomatology. Id. At 115. If the schedular rating criteria do reasonably describe a Veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. If the schedular rating criteria do not reasonably describe a Veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. At 116. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Schedular criteria are sufficient and adequate in this case. They account for the Veteran's subjectively reported and objectively identified right ankle symptoms, particularly when the functional impact of the DeLuca factors is considered. Pain, loss of motion, and instability, as well as endurance, are all weighed in evaluations under the Schedule. Accordingly, any further discussion on extraschedular entitlement is unnecessary. ORDER A rating in excess of 10 percent disabling for status post-operative injury to the right ankle with traumatic arthritis (also claimed as right ankle fracture) is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs